While the Full Bench of the Fair Work Commission’s (FWC) first decision on flexible working arrangements in Quirke v BSR Australia Ltd [2023] FWCFB 209 10 November 2023 was to reject an employee’s application to vary her working hours, it has explained the key requirements future applicants must meet to be successful.

What do employers need to do?

  • Implement clear procedures addressing these requirements to guide staff responsible for responding to requests for flexible working arrangements.
  • Train managers and HR staff to respond to requests:
    • efficiently, to meet the legislated 21-day timeframe to respond;
    • effectively, to minimise the risk of unnecessary and costly litigation; and
    • respectfully, to maintain the ongoing employment relationship.

What happened?

The applicant worked as a Customer Experience Coordinator for the respondent, who was a retailer and franchisor of electrical and furniture products. The applicant usually worked from home and attended the office one day per week. She requested a change in the pattern of her working hours across her working week on 5 April 2023, following a recommendation from her GP to ‘aid in the relief of her insomnia and anxiety’. That request was refused by the employer on 30 August 2023.

On 2 September 2023, the applicant lodged an application to the FWC to deal with a dispute arising from the refusal of her request for flexible working arrangements. The parties participated in two conciliation conferences before the matter was arbitrated by the FWC.

FWC findings

The FWC dismissed the application and held that the applicant had not made a valid request under section 65 of the Fair Work Act 2009 (Cth) (FW Act) because:

1. She did not meet the minimum period of employment.
2. She did not clearly articulate the connection between her reasons for seeking the change and her disability in writing.
3. The request was made before 6 June 2023.
4. While the FWC acknowledged that the applicant believed that she suffered from a disability, the applicant had not provided sufficient diagnostic evidence to support this. The Full Bench considered that the assessment tool annexed to her Mental Health Plan was merely a ‘screening tool’ and was insufficient to meet the burden of proof that the applicant had been diagnosed with anxiety.

Key takeaways

The FWC said that an applicant must establish the following ‘discernible requirements’ to make a valid application for flexible work arrangements under section 65 of the FW Act:

1. The employee must, at the time the request for flexible working arrangements is made, either be pregnant, have caring or parenting responsibilities, have a disability, be aged 55 or older, or be experiencing family and domestic violence (circumstance). If an employee is seeking alternative working arrangements to support a disability, they must provide sufficient diagnostic evidence in support of that application.
2. The request to change working arrangements must relate to and be made because of that circumstance.
3. The employee must meet the requisite 12 month minimum period of service, and for casual employees, they must also have a reasonable expectation of continuing employment on a regular and systematic basis.
4. The request must be in writing.
5. The request must set out ‘the details of the change sought and the reasons for the change’. Those reasons need to explain how the proposed changed working arrangements relate to the circumstances.
6. The request must have been made on or after 6 June 2023.

How Justitia can help

We can assist employers to implement clear procedures and guide your response to requests for flexible working arrangements.

For more information about this case, or for assistance with preparing your organisation to respond to requests for flexible working arrangements, contact info@justitia.com.au.